Is the judiciary ruling India? Or just filling the gap?

by Raghul Sudheesh

Ever since the Supreme Court cancelled those 122 2G licenses, there is this fear that the judiciary is ruling India. A recent column in DNA by Arvind Radharkishnan asks that very question. Radhakrishnan criticises the courts for violating the principles of “Separation of Powers” and worries about an "activist" judiciary.

He urges “Judges ought to follow this process of interpretation and should not ‘legislate’ from the bench. In case the text of the Constitution falls short of rendering justice or is inadequate, then it is for the legislature to rectify it. The judiciary should safeguard the Constitution; it should not write it.” The column further advocates the theory of “Originalism” whereby we ought to seek out the ‘original intent’ of our framers to understand what the text of the Constitution means.

Radhakrishnan’s article points out to three main issues specifically; Judicial Legislation, Separation of Powers and Original Intent Theory.

Supreme Court

Ever since the Supreme Court cancelled those 122 2G licenses, there is this fear that the judiciary is ruling India.

Rajeev Dhawan who wrote about the 2G judgment in Mail Today, said, “Great controversies rarely find strong resolution in court decisions. Courts can be past masters at evading crisis.  Justice GS Singhvi's judgment on the 2G scam is an exception.” He describes Justice Singhvi’s judgment as “informative, exploratory and decisive”.

Radhakrishnan’s concerns seems to be uncalled for for various reasons. An elaborate analysis of the various Apex Court decisions would negate his claims.

In Vishaka v. State of Rajasthan (1997), sexual harassment at work place was the main issue in the case before the Apex Court. There was no law existing then in that area. The Court took clue from International Conventions and drafted guidelines for dealing with sexual harassment at the work place and those were to be in place until legislation was enacted for this purpose. Till date, a bill with regard to the same has not been passed by the parliament. That is a delay of almost 12 years!

In Supreme Court Advocates-on-Record Associations v. Union of India (Second Judges Case in 1993), a 9-Judge Bench laid down guidelines and prescribed procedural norms in regard to the appointment of Supreme Court judges, Chief Justices and judges of the High Court and transfer of judges from one High Court to another. Even now these rules are followed by the Supreme Court and parliament is still deliberating on the “Judicial Accountability Bill”.

In Vineeth Narain v. Union of India, the Apex Court gave exhaustive directions to enhance the efficiency of the Central Bureau of Investigation (CBI) and even directed that the Central Vigilance Commission be given statutory status.

In Vineeth Narain’s case the Court also observed, “Where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.”

The Courts often step in when there is vacuum in a particular field and fill the space temporarily. Once the Parliament enacts laws, those will prevail over the guidelines issued which as the Court makes clear, are only meant to fill the gap.

Further in 2009 a two-judge Bench of the Supreme Court have referred to a five judge Constitution Bench, important questions of law on whether the judiciary by its orders could legislate to fill the vacuum in the laws in a particular field. The matter is still pending before a constitution bench of the Supreme Court — a fact that Radhakrishnan has missed.

Justice AK Ganguly in this judgment points out, “In our Constitution there is no such defined and express incorporation of the doctrine of Separation of Power”.  Justice Ganguly mentions though under Article 50 (one of the directive principles of State policy), the State is to take steps to separate the judiciary from the executive in the public services of the State; it has nothing to do with the vesting of power. Under various articles of the Constitution the legislature has some judicial powers,  the executive has some legislative powers, while under different articles, the judiciary has some legislative and executive powers.

Justice HK Sema in Common Cause v. Union of India (2008) once observed, “I am also of the view that if there is a buffer zone unoccupied by the legislature or executive which is detrimental to the public interest, judiciary must occupy the field to sub-serve public interest.”

Hence the argument that Judicial legislation are not proper and in violation of principles of ‘separation of powers’ is a trivial argument fuelled by lack of comprehensive research.

Moving to Radhakrishnan’s conclusion that the Judges should not legislate from the Bench and should see the original intent would be a ludicrous argument. Constitution is a living document and constitutional dynamism demands the document to stay in tune with the developments of science, technology and the ages. Had the judges interpreted the Constitution in a static way, right to education would not have become a reality; so is the case of right to privacy and many other rights.

To quote the words of Justice KK Mathew in Keshavananda Bharati’s case, Fundamental Rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience.”

Raghul Sudheesh is Associate Editor at Bar & Bench. You can follow him on Twitter. regularly features content from Bar & Bench.

Updated Date: Mar 09, 2012 17:17 PM

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